The
applicant must either be a very unlucky person or an extremely unwise
one prone to making poor business decisions. According to him, the
unfolding events in this matter have just unwittingly conspired
against him without his involvement resulting in him facing an
aminous judgment of US$150,608=74 entered by consent and the prospect
of his house in Mutare being auctioned over a debt which has nothing
to do with him.
He
now seeks a rescission of that consent judgment.
He
says that several years ago, in the 1990s, he found himself as joint
owner of a house in Cranborne, being Stand 9522 Salisbury Township,
Harare which he did not purchase and had nothing to do with. Much
later, he unwittingly signed a Deed of Guarantee at CBZ Bank, the
first respondent, without knowing it thinking that he was only
committing to the Cranborne house being mortgaged by his brother,
Farai William Nyemba, the fifth respondent. His misfortunes did not
end there because when the Bank sued him, his brother, and others, in
HC4912/10, on the basis of the instrument of debt he had signed, the
summons was served on his brother's gardener, Clever Chibanda, who
did not bring it to his attention. Although appearance to defend was
duly entered on his behalf and a plea filed by Gunje & Chasakara,
this was fortuitous as, not only was he not aware of that
eventuality, he also had not instructed the erstwhile law firm to do
so on his behalf.
That
is not all.
Throughout
the process of filing of pleadings he was still unaware that there
was litigation involving himself which was taking place in Harare. He
lives in Chiredzi and owns another property in Mutare. When the
matter was set down for pre-trial conference and negotiations for
settlement ensued with him being represented by a legal practitioner,
this was unknown to him, so was the consent to judgment signed by Mr
Chasakara of Gunje & Chasakara Law Firm on 27 July 2011 on his
behalf which resulted in a consent judgment granted by CHATUKUTA J on
28 July 2011.
He
would therefore like that judgment to be rescinded on the basis that
he never consented to it.
Now
this is an unlucky man indeed. It is significant that the applicant
states that he was aware that he was a joint owner of the Cranborne
house used as security for a debt owed to the first respondent. He
also “recalls” that the second to fifth respondents obtained a
loan from the first respondent. He confirms that he indeed went to
the Bank to sign documents believing that he was only signing a
consent for the use of the Cranborne house as security for the loan.
In his founding affidavit he vehemently denied being a debtor and
specifically stated at paragraph 28 thereof:
“To
the best of my knowledge I am not a debtor to the 1st
respondent, nor did I ever sign any document as surety or a
co-principal debtor.”
We
know of course that he did sign a guarantee on 4 September 2008 along
with his brother, the fifth respondent, in terms of which they stood
as sureties and co-principal debtors for the loan advanced to Praise
Petroleum (Pvt) Ltd, the second respondent. The applicant was
therefore not being candid with the court in his founding affidavit.
Subsequent
to the signing of the guarantee, the applicant must have also signed
a mortgage bond in favour of the Bank because it is common cause that
the Cranborne house was mortgaged. When the loan was not repaid
summons was issued against the applicant and the second to fifth
respondents in July 2010 and it was served at 70 The Chase, Mount
Pleasant, Harare, upon “Clever Chibanda, the said defendant's
gardener who accepted service on behalf of” all the defendants in
that matter. This was on 4 August 2010. On 16 August 2010 Messrs
Gunje & Chasakara Law Firm entered appearance on behalf of all
the defendants. On 15 September 2010 they filed a plea on behalf of
all the defendants. Much later, on 28 July 2011, the parties attended
a pre-trial conference before a judge where they signed a consent
order which was then granted by the court.
The
applicant has made an application in terms of Rule 56 of the High
Court of Zimbabwe Rules, 1971 for the rescission of that consent
judgment on the basis that he never consented to it.
He
says he was not aware of the summons as it was not brought to his
attention. He therefore did not instruct Gunje & Chasakara to
represent him. He only learnt of the litigation on 17 September 2013
when he was notified of the writ of execution by the fourth
respondent. He then obtained copies of the relevant documents from
his nephew, the third respondent.
The
application is opposed only by the first respondent. The second and
third respondents only sneaked in an affidavit, albeit out of time,
which is neither an opposing affidavit nor a supporting affidavit. So
did Tererai Hilary Gunje, a senior partner at Gunje & Chasakara,
who was not even the legal practitioner dealing with the matter; it
having been handled by Martin Chasakara who also signed the consent
order before CHATUKUTA J.
The
first respondent has contested the filing of those affidavits on the
basis that their inclusion is irregular. The first respondent
insists that no reasonable explanation has been given for the turn of
events which led to the consent order. Apart from the applicant being
bound by the Deed of Guarantee that he signed, he was aware that the
Cranborne house he jointly owned was auctioned and that it did not
realize
the value of the judgment. As the principal debtor has not contested
the judgment, the applicant is bound as surety and co-principal
debtor.
In
terms of Rule 56:
“A
judgment given by consent under these rules may be set aside by the
court and leave may be given to the defendant to defend, or to
plaintiff to prosecute his action. Such leave shall only be given on
good and sufficient cause and upon such terms as to costs and
otherwise as the court deems just.”
Both
counsel have referred to a number of authorities explaining what the
court has regards to in determining good and sufficient cause which I
have found quite useful. In Roland & Anor v McDonnell 1986 (2)
ZLR 216 (S) the headnote reads:
“A
judgment given by consent may be set aside on good and sufficient
cause; 'good and sufficient cause', in this context, is to be
determined according to the same principles by which it is to be
determined in an application to set aside a judgment given by
default. Moreover, a party will not normally be permitted to fight
over again a battle which has been already fought unless there has
been a significant change in circumstances or the party has become
aware of facts which he could not reasonably have known or found out
in the first encounter.”
The
same principles applied in determining good and sufficient cause
within the meaning of Rule 63 therefore apply to an application for
the rescission of judgement
made in terms of Rule 56. At p226 the court stated these as:
“In
coming to a final decision one has to ask whether the defendant has
shown 'good and sufficient cause' within the meaning of Rule 63
of the High Court Rules. Did the court a quo take into account;
(a)
The defendant's explanation of his default;
(b)
The bona fides of the application to rescind the judgment; and
(c)
The bona fides of the applicant's defence on the merits of the
case; and, did the court normally consider these matters in
conjuction with each other and cumulatively.”
See
also Stockill v Griffiths 1992 (1) ZLR 172 (S)…, where the point is
strongly underscored that:
“These
factors must be considered not only individually but in conjuction
with one another and with the application as a whole.”
After
making reference to a number of authorities on the subject including
what HEFER J…, said in Moshal Gevisser (Trademarket) Ltd v
Midlands Paraffin Co. 1977 (1) SA 64 (N), GREENLAND J concluded in
Washaya v Washaya 1989 (2) ZLR 195 (H)…,:
“It
seems to me that where the court is satisfied that a legal
practitioner has the authority of his client to consent to judgment,
the client will be bound by such consent and the court will visit on
the client a heavy onus before rescinding the judgment.
See
Mashal (supra) and Roland & Anor v McDonnell 1986 (2) ZLR 216
(SC).”
I
fully associate myself with that pronouncement and will visit the
applicant with a very heavy onus in deciding whether to rescind the
judgment or not.
That
brings me to the affidavits of Tererai Hilary Gunje and Crosby
Mashiri which were smuggled into the record under unclear
circumstances.
The
first respondent filed an opposing affidavit questioning why the
applicant had not elicited a supporting affidavit from Martin
Chasakara who consented to judgment explaining how he came to do
that. This was after the applicant had failed to see the need to do
so even as it was pretty obvious that the law firm of Gunje &
Chasakara owed the court an explanation.
The
applicant still filed an answering affidavit on 14 October 2013,
without any affidavit from Martin Chasakara. In fact, that legal
practitioner has not, to this date, explained the circumstances under
which he acted. That on its own, raises the question of why he has
shied away from these proceedings.
Instead,
on 31 October 2013, an affidavit by Tererai Hilary Gunje was sneaked
into the record, and, later, on 12 December 2013, an affidavit by
Crosby Mashiri was filed. He is cited in this application as the
third respondent but did not oppose the application. Neither did he
file a supporting affidavit at the time the application was filed
even though he is said to have supplied the applicant with documents
earlier. In terms of Rule 235 of the High Court of Zimbabwe Rules;
“After
an answering affidavit has been filed, no further affidavits may be
filed without the leave of the court or a judge.”
The
affidavits of Tererai
Hilary Gunje and
Crosby Mashiri were filed after the answering affidavit had been
filed. No leave was sought and none was granted. They are therefore
improperly before the court and should generally be expunged from the
record.
I
accept that the legal practitioner responsible for the alleged fault
owed it to the court to explain what transpired and could only do so
by way of an affidavit. Diocesan Trustees for the Diocese of Harare v
The Church of the Province of Central Africa 2010 (1) ZLR 267 (S)…,.;
BGM Traffic Control Systems v Minister of Transport & Ors 2009
(1) ZLR 106 (H)…,.
Tererai
Hilary Gunje may
have been driven by such considerations in submitting his affidavit.
Sight should, however, not be lost of the fact that generally
affidavits must be confined to facts which the deponent is able of
his own knowledge to prove except, of course, in interlocutory
motions.
As
I have said, Tererai
Hilary Gunje
did not deal with the matter and did not sign the consent to
judgment. His partner, Martin Chasakara, did.
I
agree with counsel for the first respondent that Tererai
Hilary Gunje's
affidavit is not helpful. His affidavit is what MAKARAU JP…,
referred to as “an affidavit of belief and information” in
Hiltunen v Hiltunen 2008 (2) ZLR 296 (H)…, where she eminently
pronounced;
“All
in all, I have not been able to isolate any facts that the deponent,
as a general agent of the applicant, would have personal knowledge
of. I therefore find that the entire founding affidavit is hearsay
and is an affidavit of belief and information. She either believes
what she is saying to be correct or she has been informed and verily
believes it to be correct.”
Considering
all the factors that have to be taken into account, individually as
well as in conjuction with one another and with the application as a
whole, I am not persuaded that the applicant has discharged the onus
of proving “good and sufficient cause” as required by Rule 56 for
the rescission of the consent order.
It
has not been satisfactorily explained why Mr Chasakara purported to
represent the applicant all the way and signed a consent order on his
behalf when he did not have instructions to do so. In that regard, Mr
Chasakara's disappearance from the scene, without tendering an
explanation to the court, cannot be ignored.
It
however does not assist the applicant.
Looking
at the bona fides of the application, I cannot ignore the fact that
this application comes well after the applicant's jointly-owned
Cranborne house was sold in execution. He only sprung into action
when his princely home in Mutare was attached. Not that the applicant
has any sustainable defence on the merits either. Even though he
claimed, in his founding affidavit, that he never signed any surety
deed, it turns out that he did and there is no conceivable reason why
he should not be bound by it. His signature on the surety deed brings
into operation the caveat subscriptor rule.
I
had occasion, in Nyika v Moyo & Anor HB145-10..., to cite with
approval the following passage in R H CHRISTIE, Business Law in
Zimbabwe...,;
“The
business world has come to rely on the principle that a signature on
a written contract binds the signatory to the terms of the contract
and if this principle were not upheld any business enterprise would
become hazardous in the extreme. The general rule, sometimes known as
the caveat subscriptor rule, is therefore that a party to a contract
is bound by his signature - whether or not he has read or understood
the contract…,. And this will be so even if he signed in blank…,
or it is obvious to the other party that he did not read the
document.”
I
still stand by that proposition and should also add that the business
of the courts would be extremely difficult, if not rendered nugatory,
if parties were to be allowed to easily reverse battle results that
would have been attained by capitulation or consent on cloudy and
flimsy grounds.
In
the result, the application is hereby dismissed with costs.
